MILLBANK & MILLBANK - [2021] FamCA 80

FAMILY COURT OF AUSTRALIA

MILLBANK & MILLBANK

[2021] FamCA 80

FAMILY LAW – CHILDREN – equal shared or sole parental responsibility – family violence – sole parental responsibility ordered.

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 64B(2), 65AA

Mayne & Tomlin [2020] FamCA 898
Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517
Taylor v Taylor (1979) 143 CLR 1

APPLICANT:

Mr Millbank

RESPONDENT:

Ms Millbank

INDEPENDENT CHILDREN’S LAWYER:

Maguire & Mcinerney Lawyers

FILE NUMBER:

WOC

149

2016

DATE DELIVERED:

24 February 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Wilson J

HEARING DATE:

22, 23 & 24 February 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Not applicable

SOLICITOR FOR THE RESPONDENT:

Not applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Maguire & Mcinerney Lawyers

Orders

The mother have sole parental responsibility for the children X born … 2008 and Y born … 2010 (“the children”) in relation to the care, welfare, and development of a long-term nature involving the children including but not limited to the following –
(a)       education;
(b)       health;
(c)       religion; and
(d)       issue of passports.
The children live with the mother.
The children spend time with the father in accordance with their wishes and as agreed between the parents in writing.
Both the father and mother are to refrain from making critical or derogatory remarks about the other parent or members of his or her family in the presence or within the hearing of any of the children and that both parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of his or her family in the presence or within the hearing of any of the children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Millbank & Millbank has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 149 of 2016

Mr Millbank

Applicant

And

Ms Millbank

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

Pursuant to the orders made by the Deputy Chief Justice on 11 December 2020 the trial of this proceeding was conducted on an undefended basis on 23 February 2021. On 5 November 2020 the applicant (the father) had filed a notice of discontinuance indicating that he no longer intended to participate in this litigation.
The independent children’s lawyer and the respondent (the mother)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MILLBANK & MILLBANK [2021] FamCA 80
Case: [2021] FamCA 80
Decision Date

CaseChat Overview and Summary

In *Millbank & Millbank* [2021] FamCA 80, the Family Court of Australia considered an application by the father (the applicant) for orders concerning his two children, X and Y. The mother (the respondent) sought sole parental responsibility for the children, with the father having time with them in accordance with their wishes, and a non-denigration order. The father had filed a notice of discontinuance, indicating he no longer intended to participate in the litigation. The independent children's lawyer supported the orders sought by the mother.

The court was required to determine whether to grant the mother sole parental responsibility for the children, and to make orders regarding the father's time with them and a non-denigration clause. Central to the determination was the application of the principles in the *Family Law Act 1975* (Cth), particularly concerning the best interests of the children, the presumption of equal shared parental responsibility, and the impact of family violence.

Justice Wilson found that the primary consideration of family violence under s 60CC(2) of the *Family Law Act 1975* was enlivened. The evidence, including affidavits from the mother and the report of a family consultant, revealed a history of the father's concerning behaviour, including alcohol abuse, anger issues, derogatory remarks towards the mother and children, and a lack of engagement with the children since July 2020. The court noted a high likelihood that the parents would be unable to communicate or cooperate effectively for equal shared parental responsibility. Furthermore, the court entertained a "very real fear" that the father would not act protectively towards the children to prevent the risk of their exposure to family violence, particularly given the reported risk posed by his new wife's teenage son.

Consequently, the court ordered that the mother have sole parental responsibility for the children in relation to their care, welfare, and development, including decisions about passports. The children were to live with the mother and spend time with the father in accordance with their wishes and as agreed in writing. Both parents were also ordered to refrain from making critical or derogatory remarks about the other parent or their families in the presence or hearing of the children.

Orders